Evaded taxes can be estimated in tax criminal proceedings. However, not every estimation method is suitable, as a decision by the BGH dated February 10, 2022, shows (Ref.: 1 StR 484/21).
If there is no exact data, the amount of tax evasion can be estimated in tax criminal proceedings. However, not every estimation method is suitable in every case to determine the amount of tax evasion, explains the business law firm MTR Legal Rechtsanwälte, which focuses its advice on tax law.
This is also shown by a decision of the Federal Court of Justice (Ref.: 1 StR 484/21). In this case, the defendant was sentenced by the Hamburg Regional Court to two years and six months imprisonment for tax evasion and attempted tax evasion.
The Regional Court found that the defendant committed a so-called double reduction, i.e. he did not fully record the purchases and sales of the company in order to “save” taxes and had corresponding tax returns for corporation, trade, and sales tax filed with the tax office by the uninitiated tax advisor over several years. Only the properly recorded revenues appeared in the tax returns.
Since the accounting did not provide information about all purchases and sales and some invoices were not traceable, the Regional Court estimated the amount of tax reductions based on the conducted goods transaction calculations for the individual tax periods and based this on the accounting data. The estimate showed that the defendant had evaded taxes amounting to several hundred thousand euros.
The BGH confirmed that money and goods transaction calculations are generally suitable estimation methods, but not in this case, as they do not prove the tax reductions without error. The prerequisite for an estimate based on a goods transaction calculation or a cash transaction calculation is always that it starts from a secured opening balance and a secured closing balance. This was not the case here, as it could not be assumed that the recorded inventory lists of the company reflected the actual inventory at the respective cut-off date. This can only be assumed if specific facts suggest it. The goods transaction calculation was therefore an unsuitable estimation method here, according to the BGH.
MTR Legal Rechtsanwälte advises on tax criminal law and tax criminal proceedings.
